$250,000 Infringement Lawsuit: Baby Esther Jones
Baby Esther Lee Jones ---- Lou Bolton was called to the stand to explain the footage of Baby Esther Jones that was shown in court. Mr. Bolton, did you just see projected on the screen with sound the picture of Baby Esther? Lou Bolton: "I did." Will you tell me if the sounds which you have described this morning as "hot licks" were the sounds that were used by her prior to the talking of this picture?" Mr. Weltz: "Objected to as incompetent, irrelevant and immaterial." The Court: "Sustained." After having seen the picture, can you state what sounds were used by Baby Esther in the various theatres that you mentioned this morning in addition to those which you mentioned this morning? Mr. Weltz: "Objected to." The Court: "The witness may answer yes or no." Lou Bolton: "Yes." Jacques Van Straden (1540 Broadway), it then called as witness in behalf of the defendant Paramount Publix Corporation. Mr. Van Straden, what is your business or occupation? Jacques Van Straden: "Auditor." With what firm are you so engaged? Jacques Van Straden: "Metro-Goldwyn-Mayer." For how long have you been in its employ? Jacques Van Straden: "Seven years." Where you so employed as auditor during the year of 1928? Jacques Van Straden: "Yes, sir." I show you this record and ask you if that is a record of a little girl called "Little Esther" or "Baby Esther"? Mr. Weltz: "I object to that, may it please your Honor, what the record is." (Overruled. Exception by plaintiff.) Jacques Van Straden: "It is." Is this the record that you, at my request gave to Mr. Fleischer? Jacques Van Straden: "It is." Van Straden then explains that he gave it to Max Fleischer two and a half weeks ago. And that the record of Esther Jones was produced in December, 1928. When asked if it is the master record, Van Straden tells that court that it isn't. Where is the master record, if you know? Jacques Van Straden: "Columbia Phonograph Company, Bridgeport, 1064 Connecticut." The songs on that record are the same songs that were on the original record that was produced at this Metro-Goldwyn-Mayer Studios in 1928? Jacques Van Straden: "Yes, sir." Have you here the corporate records showing the date of the recording and the date of the photographing of the motion picture with the sound of Baby Esther? Jacques Van Straden: "Yes." I show you and ask if these are corporate recordings? Jacques Van Straden: "Yes, sir." Mr. Phillips: "I offer them in evidence." Mr. Weltz: "Objected to." The Court: "Ask him the date." Mr. Phillips: "December 6th, 1928." I show you this paper, and ask you if that is the agreement made between the Metro-Goldwyn-Mayer Corporation and Little Esther, by Lou Bolton, for the production of the motion picture "Baby Esther"? Jacques Van Straden: "It is." Will you please look at this paper to refresh your recollection, and I ask you isn't it a fact that before this girl Esther Jones sang "Don't Be Like That," for this record, you procured permission from Shapio & Bernstein for the use of that song? Jacques Van Straden: "Yes." And likewise before you permitted this girl Esther Jones to sing "Is There Anything Wrong in That?" you also procured from Shapiro & Bernstein their consent therefor? Jacques Van Straden: "Right." That is also true of the singing of the song "Wa-Da-Da." you also procured consent from Shapiro, Bernstein? Jacques Van Straden: "I did." The evidence were commenced about December 6th, I presume and completed in the latter part of December, is that correct? 1928? Jacques Van Straden: "Yes." During the trial it was pointed out by Helen Kane's attorney that Baby Esther's recordings were made in December, 1928. Making it known that Helen Kane had performed, recorded and released the same songs Esther Jones had performed months earlier. Mr. Weltz: "I sumbit sir, that this talking picture of Baby Esther is irrelevent, incompetent, and immaterial." Helen Kane's lawyer then tried to claim that Baby Esther Jones was a Helen Kane impersonator. Mr. Weltz: "If in any wise there be a similarity between the singing of this girl and Helen Kane, it conclusively appears from these facts that she was an imitator of Helen Kane. The Court: "Denied." According to documents, Esther Jones was actually a Florence Mills impersonator and had been imitating Mills since 1928, at the Everglades. The same place where Helen Kane first saw her perform. There is a possibility that Esther could have been portraying a "Boop-Boop-a-Doop" girl in that MGM film short, however, she did the scat singing before Kane was known, and had actually inspired Kane to do it in the first place. For more information look up the musical Shuffle Along and Gertrude Saunders. Florence Mills replaced Saunders in that musical. Esther Jones was a Mills impersonator and her singing style was based on Mills'. So when Helen Kane saw Jones in 1928 with Tony Shayne at the Everglades, she was taking direct inspiration from Jones' impersonation of Florence Mills. Mr. Weltz: "'Don't Be Like That' that was sung by this Baby Esther and it appears in the song sheet, that the song 'Don't Be Like That' was introduced by the plaintiff Helen Kane. 'Is There Anything Wrong in That' was also introduced by Helen Kane." The Court: "Motion denied." Helen Kane's attorney tried to claim that because Helen Kane had introduced the songs and was receiving royalties on some of them, that she was entitled to be the originator. When in reality, those songs were not originally written for Helen Kane, and had been performed by a galaxy of performers. Only in her "Boop-Boop-a-Doop" style of singing, that is how her covers which were hits during the 1920s, were known for. As "Boop-Boop-a-Doop" was popular in the 1920s. Helen Kane had made interpolating scat sounds into songs famous, but was not the originator. She attempted in court to lay claim to being originator of interpolating scat into sounds, and during the trial pretended that she had no idea what "scat singing" or "hot licks" were. ---- Category:$250,000 Infringement Lawsuit Category:Kane v. Fleischer et al., 248 A.D. 554 (New York Supreme Court, Appellate Division New York State Library, Albany. 130.)